Practical Tips for Planning for COVID-19 (Coronavirus) and Special Education

03.12.2020

This alert is intended to highlight potential legal implications for school districts in addressing the impact on special education students of absences due to quarantine, and/or school/district closures resulting from COVID-19.  For more broad legal implications regarding the impact of COVID-19 on school districts, please click here: https://www.aalrr.com/newsroom-alerts-3602.

As school districts develop contingency plans in the event COVID-19 becomes prevalent in their areas, it is important to consider how any such plan may impact students with disabilities, and to ensure that the plan does not result in discrimination.  Neither the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504”), the Americans with Disabilities Act (“Act”), nor related state laws specifically address a district’s responsibility to students with disabilities in the case of extended school closures because of exceptional circumstances.  However, it is clear that school districts must not discriminate on the basis of disability when providing educational services or access to education during the pendency of any closure. So, what does that mean?

Although neither the Center for Disease Control (“CDC”), the United States Department of Education (“USDOE”), nor California Department of Education (“CDE”) have as yet provided specific guidance/requirements for districts to implement for special education students related to COVID-19, the following guidance provided during similar outbreaks, such as H1N1, provide a model for appropriately responding to COVID-19.

 Where a Student is Quarantined:

Where an individual student is quarantined due to exposure to or contraction of COVID-19 for an extended period of time (generally longer than 10 consecutive school days[1]) as ordered by a doctor, Local Department of Public Health (“DPH”), or the CDC, but the school/district remains open, the district must provide special education and related services to the student.  Under this circumstance, we recommend the district do the following:

• Contact the student’s parents regarding the status of the student, the estimated length of quarantine, and the student’s availability for instruction (i.e. whether the student is healthy enough to access/benefit from supports/services)
• If the student is estimated to be quarantined for an extended period of time, an IEP team meeting should be held (likely telephonically) to determine the student’s availability for instruction, and to offer supports/services, while complying with all appropriate health guidelines for prevention and containment of COVID-19. Possible supports/services to consider include, but are not limited to, instruction/consultation via telephone or other distance learning platform, work packets/curriculum based activities, related services provided via telephone or other distance learning platform, consultation to parents, etc.
• If a student does not receive services after an extended period of time, an IEP team will need to determine, on an individual basis, whether the student requires compensatory education to make up for any skills lost. No specific formula for determining whether compensatory education is owed, and if yes, how much, has been provided in case of a student missing services due to quarantine.  Teams may wish to use a regression/recoupment analysis similar to that required for determining eligibility for extended school year in deciding whether a student should be provided compensatory services.
• Allow the student to return to school in compliance with the directives of the CDC and DPH.

 Where a School/District is Closed:

 If a district closes a school/district to prevent the spread of and/or contain COVID-19, and does not provide any educational services/access to general education students, then the district is not required to provide services/access to students with disabilities during the same time period.  Under this circumstance, we recommend the following: 

• Provide prior written notice to the parents/guardians of all special education students indicating the date services will stop due to the school/district closure, the estimated date services will resume, if known, and a copy of Parent Rights and Procedural Safeguards.
• After the school/district re-opens, each student’s IEP team will need to determine, on an individual basis, whether the student requires compensatory education due to an extended closure to make up for any skills lost. As mentioned above, teams may wish to use a regression/recoupment analysis similar to that required for determining eligibility for extended school year in deciding whether a student should be provided compensatory services.

If a district closes a school/district to prevent the spread of and/or contain COVID-19, and provides educational services/access to general education, the district must ensure comparable services/access are provided to students with disabilities.  Under this circumstance, we recommend the following:

• Provide prior written notice to the parents/guardians of all special education students indicating the date of the school/district closure, the general education services/access available to students during the closure, the comparable special education services/access to be provided to the particular student during the closure, the estimated date school will resume, if known, and a copy of Parent Rights and Procedural Safeguards.
• Regarding comparable special education services/access, districts must ensure that the services/access are, in fact, accessible to all special education students. For instance, students with moderate/severe disabilities may not be able to access and/or benefit from on-line classes/support or access to assignments through Google classroom.  In that case, if on-line classes/support and access to assignments through Google classroom are the supports and services being provided to general education students and perhaps students with mild/moderate disabilities, the district will also need to figure out how to provide comparable supports/services to students with moderate/severe disabilities, such as consultation services via phone or other distance learning platform and appropriate curriculum/activities to work on at home.
• As mentioned above, after school re-opens, each student’s IEP team will need to determine, on an individual basis, whether the student requires compensatory education due to an extended closure to make up for any skills lost.

The circumstances surrounding COVID-19 are rapidly changing, and we are learning new information each day.  In addition to your local DPH and County Office of Education websites, sources of up-to-date information include the following:

https://www.ed.gov/coronavirus

https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-for-schools.html

Districts are encouraged to work with local, state, and federal health and education authorities, as well as legal counsel, to prepare for all eventualities, including possible quarantines and school/district closures, and their impact on students with disabilities arising from COVID-19.

[1] See USDOE Questions and Answers on Providing Services to Children with Disabilities during an H1N1 Outbreak (2009)

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The firm is not responsible for inadvertent errors that may occur in the publishing process. 

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